1. CONTROLLING DOCUMENT: Onset Worldwide LLC. (“Onset Worldwide”) hereby accepts the Buyer’s order pursuant to and conditioned on the Buyer’s assent to the terms and conditions set forth herein, and Onset Worldwide agrees to furnish goods (the “Product” or “Products”) only upon these terms and conditions. This document constitutes the entire agreement between the parties. Differing terms and conditions shall require a separate written agreement. THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON THE BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER. No course of prior or current dealings between the parties and no usage of trade shall be relevant to, supplement or explain any term nor shall course of prior or current dealings constitute a waiver of any of the terms contained herein. Photocopies, electronic copies and facsimile transmissions of documents shall be effective as originals and shall be considered a “writing” between the parties. Buyer is deemed to have accepted the Terms & Conditions contained herein upon shipment of the Product.
2. PRICES AND TAXES: Buyer shall pay Onset Worldwide the price expressly quoted by Onset Worldwide in writing to the Buyer. Onset Worldwide reserves the right to change the price on future orders of Products. All prices listed or quoted shall be exclusive of delivery charges, taxes, customs, duties, or other customary shipping fees unless otherwise expressly stated.
3. TERMS OF PAYMENT: Regardless of if Buyer signs order confirmation, by accepting product and/or shipping and/or picking up product, Buyer agrees to the following: to pay invoice within offered payment terms; if late, late fees apply per below terms; and if a collections agency or legal action is required, Buyer agrees to pay all collection fees and attorney’s fees of 1/3 of any claim amount. Payment for Product shall be due as of the payment date stated on Onset Worldwide’s invoice. Any overdue payment may be subject to a late payment interest charge of 1.5% per month (18% per year) or the highest amount permitted by law, whichever is less. Unless otherwise indicated in writing, each shipment shall be considered an independent transaction and payment therefore shall be made accordingly. Invoiced freight charges include applicable shipping, handling, and processing charges. All orders are subject to approval of Onset Worldwide credit department. If in the judgment of Onset Worldwide, the financial condition of the Buyer at any time does not justify continuance of shipment on the terms of payment specified, Onset Worldwide may require full or partial payment in advance. In the event of bankruptcy or insolvency of Buyer, or in the event of any proceeding brought by or against Buyer under insolvency laws, Onset Worldwide shall be entitled to cancel any order of the Buyer then outstanding and shall receive reimbursement from Buyer for Onset Worldwide’ cost as of the date of cancellation. Buyer authorizes Onset Worldwide to investigate Buyer’s credit and financial standing, Buyer will supply any financial information reasonably requested by Onset Worldwide. Onset Worldwide agrees to hold such information confidential, and Onset Worldwide reserves the right to require Buyer’s principles to guaranty payment on any order before, during or after fulfillment of any order. Onset Worldwide shall maintain a priority purchase money security interest in the Product (and replacement) delivered hereunder and in the proceeds from the sale and disposition thereof, until Buyer has made payment in full for such Product. Buyer shall, upon request by Onset Worldwide, execute all documents necessary to perfect such security interest in Product. Onset Worldwide has the right, upon demand, to repossess Product delivered hereunder if Buyer fails to make timely payment. All payments shall be made without any deduction and free of any set-off or other counterclaim.
4. SHIPMENT: Onset Worldwide makes efforts to meet Buyer’s requirements for Product delivery whenever possible. However, any shipping, delivery, or processing dates as indicated by Buyer or Onset Worldwide are estimates only, and Onset Worldwide shall have no liability to Buyer for failure to complete delivery of an order by the date indicated or for any of Buyer’s incidental, indirect or consequential damages arising from a delay. Onset Worldwide shall ship Product to Buyer F.O.B. Origin, unless otherwise specified in writing between the parties. Onset Worldwide’s title to Product passes to Buyer upon delivery of Product to the carrier for shipment, with carrier acting as Buyer’s agent. Buyer assumes the risk of loss for Product in transit and shall be responsible for obtaining insurance, if desired. For foreign shipments, Buyer assumes all risk and responsibility relating to entry of Product into the country of destination, and Onset Worldwide makes no warranties or guaranties relating thereto, and shall have no liability relating thereto. Onset Worldwide will not consider any claim for non-conforming Product or shortages (“Non-Conformances”) unless Buyer complies with the notice and authorization requirements set forth at paragraph 5. Buyer may not return Product without Onset Worldwide’ written authorization. If a return is authorized, Buyer shall return all non–conforming Product within 10 days after receipt of authorization, and shall ship the Product F.O.B. Destination. Due to food safety and defense concerns, all conforming products are non-returnable and non-refundable. All non-conforming Product sought to be returned must be within the lot expiry period and received not later than 30 days after originally shipped by Onset Worldwide. All returns must be sent to Onset Worldwide LLC., 843 State Route 12, Suite B-15, Frenchtown, NJ 08825, unless otherwise directed by Onset Worldwide. All unauthorized returns will become the property of Onset Worldwide and no credit will be issued. Product for which delivery is suspended pending payment by Buyer, as well as Product of which delivery is wrongfully rejected or not accepted by Buyer, shall be held and stored by Onset Worldwide at risk, cost and expense of Buyer. Special delivery terms may apply; contact Onset Worldwide for details.
4.A - SHIPMENT WITHOUT FINAL TESTING RESULTS: If Buyer is requiring pick up of product prior to final COA (certificate of analysis) results, Buyer/consignee shall not use or distribute product before results are provided. Onset Worldwide will not be liable for usage of product prior to final COA results, including but not limited to - manufacturing costs, blended product replacement costs, injury to consumer, nor reimbursement for shipping costs if product is out of specification. The products that are supplied by Onset are raw agricultural ingredients or made from those ingredients. Pathogen testing is not an all-inclusive representation of the inherent risk associated with a raw ingredient. These ingredients may need to be further processed to significantly minimize or prevent the risk of pathogens; with the exception of microbial reduced products. The responsibility for the microbiological stability of the foodstuff made with our products lies with the user. It’s also the duty of the user to insure that the use of our product and the placing on the market of the food made with it complies with Federal, State and local applicable legal requirements, taking also into consideration specific needs.
4.B - RAW PRODUCT DISCLAIMER: If any Product is listed as a raw product (and not “ready to eat” or “RTE”), the following disclaimer shall apply (and supersede any disclaimer or limitation of liability on the face of a Sales Contract). A raw product (1) is not safe to consume as is, (2) may contain harmful pathogens that can cause serious illness if consumed as is, and (3) must be further processed to kill pathogens before it is safe to consume. Seller hereby disclaims any warranties for the raw product that is used as “as is” or “ready to eat” and shall not have any liability for, or attributable to, the raw product that is used as “as is” or “ready to eat”, including but not limited to, the purchase, receipt, storage, handling, use, resale or recall of the raw product that is used “as is” or “ready to eat” by buyer or its customers or consumers.
5. INSPECTION: Buyer shall be responsible for inspecting and examining all Product shipped hereunder prior to acceptance. Buyer shall give Onset Worldwide written notice of rejection specifying the alleged Non-Conformance within five days following delivery to Buyer. Failure to provide such written notice of rejection within the five days of delivery shall be deemed to be acceptance of the Product by the Buyer as of the date of shipment. Any resale, commingling, alteration or incorporation of the Product by the Buyer shall be deemed acceptance of the Product as of the date of shipment. If Onset Worldwide handles delivery and damage occurs during trucking, damage must be noted on the Bill of Lading, clear pictures taken, amount of unusable product noted, and requested refund amount stated. All information must be send to Onset Worldwide within five days following delivery to Buyer. No freight damage refunds can be issued if proper procedures are not met.
6. WARRANTY: There are no express warranties hereunder. The liability of Onset Worldwide for any claim brought by the Buyer is limited, at Onset Worldwide’s option, solely to replace the Product, or apply an appropriate credit adjustment not to exceed the sales price of the Product to Buyer. If the claim is relative to Non-Conformance, Buyer is only entitled to the remedies listed above provided that: (a) Onset Worldwide is notified in writing by Buyer within five days of receipt of alleged Non Conformance setting forth the alleged Non-Conformance, date of purchase, date of receipt, and invoice number; (b) Buyer shall set aside and hold such Product without further use or processing until Onset Worldwide advises Buyer as to the proper disposition of the Product; (c) And unless shortage, the Products returned to or inspected by Onset Worldwide, and Onset Worldwide determines that Non-Conformance exists, and was not caused by negligence, misuse, improper storage, or accident. Buyer shall have no right to “cover” by procuring substitute goods at the expense of Onset Worldwide. Onset Worldwide HEREBY MAKES NO OTHER WARRANTY EXPRESSED OR IMPLIED. Onset Worldwide EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF Onset Worldwide. Onset Worldwide NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR Onset Worldwide ANY LIABILITIES. UNDER NO CIRCUMSTANCES SHALL Onset Worldwide, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGE, LOSS OR EXPENSE. Buyer’s remedies under this Agreement for any claim against Onset Worldwide shall be solely and exclusively limited to replacement of the Product or a credit not to exceed the sales price of the Product to the Buyer. This section sets forth the sole and exclusive remedy against Onset Worldwide. No action may be taken against Onset Worldwide for breach of this Agreement more than one year after the accrual of the cause of action.
7. INTELLECTUAL PROPERTY: All specifications, designs, data methods, patterns, and ideas made, used, conceived, developed or acquired by Onset Worldwide incident to its performance under this Agreement and all patent, trade-secret, know how, copyright, trademark or other proprietary right therein shall be the exclusive property of Onset Worldwide, and no part of the purchase price hereunder shall be deemed applicable to acquisition of or licensing of the foregoing unless otherwise agreed to in writing by Onset Worldwide. No licenses to any intellectual property of Onset Worldwide (including use of trademarks and trade names) are granted to Buyer. Onset Worldwide HEREBY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER ABOUT THE NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY. Onset Worldwide WILL NOT BE OBLIGATED TO DEFEND AND DOES NOT INDEMNIFY BUYER IN ANY WAY WHATSOEVER RELATING TO ANY THIRD PARTY’S INTELLECTUAL PROPERTY.
8. FORCE MAJEURE: Onset Worldwide shall be relieved of the performance of its obligations for the duration and to the extent that it is prevented in the performance of its obligations by reasons of force majeure. For purposes of this clause, force majeure is defined as circumstances or events which may have not been foreseen at the time of entering into this transaction, which are not the fault of Onset Worldwide and which prevent the performance of all obligations hereunder and which are not capable of being remedied. Force majeure events include, but are not limited to, acts of God, acts of war, acts of the Government, acts of Buyer, inability to obtain necessary labor, materials or manufacturing facilities, Pandemics, blockades, revolutions, industrial disputes and commercial impracticality.
9. INDEMNIFICATION: Buyer shall indemnify, defend, and hold Onset Worldwide, its employees, suppliers, and agents harmless from and against any and all liabilities, damages, injuries, claims (irrespective of the legal theory on which any claim is based), suits, judgments, causes of action, and expenses (including attorneys’ fees, court costs and out-of-pocket expenses) suffered or incurred by Onset Worldwide as a result of any action or omission by Buyer its employees or agents.
10. ASSIGNABILITY: Onset Worldwide may assign or subcontract all or any portion of its right or obligations with respect to sale of the Product or assign the right to payment without Buyer’s consent. Buyer may not assign these Terms and Conditions, or any of its rights or obligations herein without prior written consent of Onset Worldwide subject to the restrictions in assignment contained herein. These Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No portion of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.
11. LAW AND JURISDICTION: This agreement shall be deemed to be made in New Jersey and governed in all respect by New Jersey law. The parties to this agreement irrevocably consent to the exclusive jurisdiction of the State and Federal Courts located in the state of New Jersey. BUYER WAIVES RIGHT TO A TRIAL BY JURY. If any portion of this Agreement is found by a Court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the remainder of this Agreement.
12. PROPRIETARY/SPECIAL ORDERS: If Onset Worldwide deems an order proprietary or a special order Onset Worldwide will advise Buyer as to same. Buyer shall be liable to OnsetWorldWide for any and all proprietary or special order items purchased by OnsiteWorld Wide purchased for Buyer by OnsetWorldwide including any and all inventory as to same. If buyer seeks Proprietary or special orders or custom made products, Buyer shall be responsible for any and all costs associated with same. Onset Worldwide will invoice Buyer two weeks after the later of when the product is ready and or the testing report is available. Buyer shall make payment in full within the payments terms between the parties.
